Mandatory tests for training: legal dilemma

Q I am the HR manager at a large retailer. Anecdotal evidence suggests that general IT and English skills are below average among the support staff so I want to introduce mandatory training for employees who need it. Is there a risk of discrimination claims if I ask all support staff to take part in a series of tests to see who needs further training?

A You are right to give proper consideration to this issue at the outset as it will help to shape the communication of your aims to your support staff. This is important as a perceived need for better English skills can give rise to controversy, and assumptions about the reason why an employee struggles with IT can be dangerous – a person’s age or a disability may be material.

When assessing the impact of initiatives directed at a group of staff, we are in the territory of what is commonly referred to as indirect discrimination. The word indirect does not appear in our anti-discrimination legislation but is used as shorthand to describe a situation in which one has to consider whether some policy, practice, or criterion with an apparently universal and neutral application actually has a disproportionate impact on members of a particular ethnic group or on say, women as opposed to men.

While our legislation on disability discrimination does not contain provisions outlawing indirect discrimination in exactly the same way other provisions do, it does include the duty to make reasonable adjustments, which comes into force when particular arrangements or circumstances put a disabled person at a substantial disadvantage.

In carrying out tests or assessments, the first thing to communicate is that their purpose is to identity training needs in the entire group. As you are proposing to make training mandatory, it may be difficult to allay every suspicion that this is the thin end of a performance management wedge. You should also be careful to ensure that the training itself does not become the focus of the discrimination claim because it takes place off-site or after hours or counts as unpaid work etc.

On the positive side, the use of tests and assessments that are clearly aligned to work already undertaken by support staff (and which are adjusted to make them comparatively meaningful and worthwhile for staff with disabilities) offers a better chance of convincing a sceptical employee and will be of great value in your defence should tribunal proceedings result at this or some later stage.

Michael Berriman, employment partner, Weightmans

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